BZAP rejects Tree of Life's latest request for rezoning

Upper Arlington building and zoning officials this week rejected Tree of Life Christian Ministries' latest rezoning request to permit a religious school at the city's largest office complex.

For the third time since purchasing the former America Online in 2010, Tree of Life failed to convince the Upper Arlington Board of Zoning Appeals to recommend exceptions be made to allow a private school at 5000 Arlington Centre Blvd.

Excluding Kevin Carpenter, who recused himself from the Nov. 18 hearing, BZAP members voted unanimously against recommending that Upper Arlington City Council rezone Tree of Life's 15.8-acre property off Henderson Road.

This time, BZAP rejected the organization's request to rezone the property from an Office and Research District to a Residential Suburban District, which would allow a private school to operate there.

Previously, both BZAP and council denied Tree of Life's bid for a conditional-use permit for the school, as well as a request to add private religious schools to the permitted uses in the ORC.

"It's not a surprise," said Megan Peters, an attorney for Tree of Life. "We don't anticipate (council) will find anything different."

Council is expected to address the rezoning request within the next month, but Peters said that likely will be a formality on the way to another denial.

Following council action, U.S. District Judge George C. Smith is expected to rule on the merits of Tree of Life's religious discrimination case against the city. He previously dismissed the matter, in part because the organization hadn't requested the office site be rezoned before filing its lawsuit.

Since the dismissal, Tree of Life sought to have the office complex rezoned, and a panel of the 6th U.S. Circuit Court sent the case back to Smith Sept. 6. It ruled he must consider if the city violated the federal Religious Land Use and Institutionalized Persons Act when Upper Arlington City Council denied the rezoning request last March.

"We feel we have rights under the RLUIPA statute to be in this building, to not be discriminated against because we're a religious institution," Peters said.

Tree of Life wants to open a school for students in preschool through 12th grade that immediately would serve about 530 students, Peters said. She added it has room for growth, but would enroll no more than 900 total students.

In rejecting the latest rezoning request, BZAP members again cited concerns that rezoning Tree of Life's site would negatively affect the city's ability to generate substantial commercial tax revenue. They noted the ORC currently makes up 1.1 percent of Upper Arlington's total land.

They also pointed to the city's master plan, which states only 4.7 percent of Upper Arlington's total land is dedicated for retail and office uses, and directs city officials to maintain or enhance the current commercial land-use base.

"I am not ready to give up on those objectives of the city, regardless of what the market is," BZAP member Donald Osterhout said. "It's a long-term view."

BZAP members also sided with Upper Arlington Senior Planning Officer Chad Gibson, who, in a staff report to the board, stated, "The proposed zoning change would eliminate nearly 16 acres of extremely limited ORC-zoned ground, which will reduce the amount of office and research space within the city.

"The master plan clearly indicates that the Henderson Road corridor has the greatest opportunity for intense office use, and approving such a rezoning would be contrary to the city's long-term financial interests.

"The majority of land use categories within Upper Arlington currently permit schools, public or private, religious or secular," the report said. "The applicant has failed to establish the necessity of changing the zoning of an established office park from commercial to residential given the potential detrimental impacts to the city."

In arguing for the rezoning, Peters rejected city staff concerns that the school would adversely affect traffic in the area, saying it would create fewer problems than a large, corporate tenant.

She also noted the school would diversify education options for area parents and students, and said it would initially have a 100-person staff that would generate nearly $3 million in annual income taxes for the city.

"We see it as a positive change for Arlington," she said. "The market reality is this building could be used for something better.

"(Nearly $3 million in income taxes) is certainly better than what they've been getting."

Peters said Tree of Life is "committed to the final decision process" of the courts. In addition to believing that it is backed by RLUIPA, she said the school's board of trustees believe the Upper Arlington building "was the direction God was leading Tree of Life."